Dr.shamsheer v UOI [WP]

8/12/2019 Dr.shamsheer v UOI [WP]

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IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTIONWRIT PETITION (CIVIL) NO. of 2014

IN THE MATTER OF

Dr. Shamsheer V.P. Petitioner

Versus

Union of India & Anr Respondent

PAPER - BOOK

(FOR INDEX KINDLY SEE INSIDE)

Advocate for the Petitioner:- Mr. R. S. Jena


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INDEX

Sl. No. Particulars Page

1. Listing Performa

2. Synopsis and list of dates

3. Writ Petition with Affidavit

4. Annexure P1

A true copy of the

amendment bill to the

Representation of peoples Act

is attached herewith and

marked as

5. Annexure P2

A true copy of the statementreported in the economic

times in the January 2010 is

attached herewith and

marked as

6. Annexure P3

A true copy of the order

passed by this honble Court

in W.P. No. 193 of 2010 dated

19.7.2010 is attached

herewith and marked as

7. Annexure P4

A true copy of the notification

dated 22.9.2010 bringing into

force of the Representation

of Peoples Amendment Act ,

2010 is attached herewith and

marked as


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SYNOPSIS

That the Petitioner is filing the present Writ

Petition in public interest under Article 32 of the

Constitution of India for the enforcement of his

fundamental rights guaranteed under Article 14 ,

19 and 21 of the Constitution of India and seeks a

writ in the nature of mandamus to read down

Section 20A of the Representation of Peoples

(Amendment) Act, 2010 No.36 of 2010 so as to

allow the Non Resident Indians(NRIs) working

abroad to cast their vote from the place of

employment.

It is submitted that though the intention behind

the amendment Act was to allow the NRIs to vote

from abroad, Section 20A has placed an

unreasonable restriction in as much as the NRIs

have to be physically present in their respective

constituencies at the time of Elections. Therefore,

the object for which the amendment was brought

about has been defeated by the said provision.

It is submitted that as per the Ministry of

Overseas Indian Affairs own data, 1,00,37,761

Indians reside abroad as on May, 2012 and is


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entitled to vote. But only 11000 NRIs have

enrolled as voters in the electoral list. This is

because of the unreasonable restriction placed on

the NRIs by the amending provision Section 20A.

If the relief as sought for by the Petitioner is

granted, then a total number of 1,00,37,761

people will be entitled to cast their vote as against

a paltry 11000 who has registered. It is therefore

submitted that Section 20A directly violates Article

14 of the Constitution of India.

The Petitioner herein is a Doctor by profession.

The Petitioner migrated to the UAE 12 years ago

prior to which he was enrolled as a voter in his

hometown of Calicut , Kerala and as such had

voted in the elections. Subsequently he was

removed from the voters list because of his NRI

status.

The Petitioner has got 9 hospitals in the UAE and a

pharmaceutical manufacturing unit. Around 5600

people work with him of which 3600 are Indians.


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(1A) A person absenting himself temporarily from

his place or ordinary residence shall not by reason

thereof cease to be ordinarily resident therein.

(1B).....

(2).....

(3)....

(4).....

(5) .....

(6) .....

(7) If in any case a question arises as to where a

person is ordinarily resident at any relevant time,

the question shall be determined with reference to

all the facts of the case and to such rules as

maybe made in this behalf by the Central

Government in consultation with the Election

Commission.

In view of the fervent requests of many NRIs

resident abroad who were interested in the

political process in the country the legislature

thought it prudent to amend the Act so as to allow

the large number of Indians resident abroad to


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exercise their right to vote. It is submitted that

legislature in the statement of objects and reasons

in the amendment bill has recognised the fact that

the right to vote is a legitimate right and would

facilitate the process of allowing the NRIs to join

the democratic process. In view of the same, the

Parliament vide the Representation of the peoples

(Amendment ) Act,2010 No. 36 of 2010

introduced Section 20A into the Act. Section 20 A

of the Act reads as follows:

Section 20 A(1) : Notwithstanding anything

contained in this Act, every citizen of India-

(a) Whose name is not included in theelectoral roll;

(b) Who has not acquired the citizenship ofany other country ;and

(c) Who is absenting from his place ofordinary residence in India owing to his

employment , education or otherwise

outside India(whether temporarily or not)

Shall be entitled to have his name

registered in the electoral roll in the

constituency in which his place of


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residence in India as mentioned in his

passport is located.

(2) the time within which the name of

persons referred to in sub-section(1) shall

be registered in the electoral roll and the

manner and procedure for registering of a

person in the electoral roll under sub-

section (1) shall be such as may be

prescribed.

(3) every person registered under this

section shall, if otherwise eligible to

exercise his franchise , be allowed to vote

at an election in the constituency.

It is the humble submission of the Petitioner

herein, that the provision when read enjoins upon

the NRI who wishes to cast his vote to be present

in his constituency at the time of the elections. It

is submitted that the provision does not allow for

the utilization of external voting methods which

are in use across the world.

The procedure laid down by the prevalent law is

that the NRI who wishes to register/enrol has to


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fill the prescribed form 6A before the electoral

Registration Officer/Assistant Electoral

Registration Officer of his constituency where he

ordinarily resides in India. This registration can be

done either in person, by post or even online

.Despite this being the procedure adopted for

registration, for the purpose of actually exercising

his franchise, the registered NRI voter will have to

be personally present to cast his vote at the

polling station in his constituency.

As per the Ministry of Overseas Indian Affairs own

data, 10037761 reside abroad as on May, 2012.

It is submitted in light of this requirement, it

paints the entire process of empowerment as a

farce as the intention behind the law cannot be

fully exercised.

Further, the law as it stands today, creates an

inequality between the different economic demo

graphs of Indian citizens living abroad and

therefore is violative of Article 14 of the

Constitution of India.


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Therefore, even if a tiny portion of these NRIs

register, actually having to return to their

constituency personally to vote is literally

impossible.

As a result, this forward thinking progressive

legislation has been turned into merely an

impractical gesture.

In consideration of this, what needs to be done is

realisation of the rapidly porous borders being

created as a result of cultural, professional and

social globalization. Citizens no longer feel the

need to stay within their own countries and

consider exploring the world for the purpose of

jobs and even education. It is submitted that vide

the amendment, the Parliament has recognised

the fact that NRIs stand on a different footing and

has therefore removed the requirement of having

to be ordinarily resident in the Country. However,

this amendment is deemed ineffectual inasmuch

as the concomitant procedures attached to it

require the NRIs to be personally present in the

constituency during voting. It is submitted that

the only way to remove this defect would be to


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For this purpose it is necessary to recognise the

different broad based categories of NRIs and

emigrants:

1.Migrant workers.2.Individuals in professional groups.3.All of the citizens living abroad whether

temporarily or permanently.

As per estimates from a study of the International

Organization for Migration conducted in 2005,

around 190 million people across the globe lived in

a country which is different from the one in which

they were born. Taking into focus the present law,

although the number of migrant Indian workers

far outweigh the number of citizens of India in

the other groups, due to the procedural bottleneck

almost all of them will not have an opportunity to

vote. It is the submission of the Petitioner that for

a vast majority of the NRIs, working in a foreign

country is not a matter of choice. Most NRIs are

forced to leave their families and travel to far

away countries owing to reasons including lack of

employment opportunities in their respective

home states.


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This unfortunately is a reflection of the fact that

the alternate, more viable options of exercising

franchise externally have not been appropriately

analysed prior to passing of the bill and framing

the rules.

In view of the same, it would be necessary to

examine the various manners in which other

countries which extend this essential right of

external voting allow their citizens to place their

vote. As per a report issued by International

Institute for Democracy and Electoral Assistance

out of the total 114 countries that have adopted

external voting , 20 Asian Countries are included.

These 114 countries have adopted numerous

methods for enabling the external voter to cast

their votes. A few of the viable options available

are:

1.Personal voting: Here the external voterscast their vote in pre-designated polling

booths in diplomatic missions set up abroad.

2.Postal Voting: Here the external voter fillsout a ballot paper and posts the same to a


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pre-designated polling station in their home

country via regular post.

3.Proxy Vote: Here the external voter isallowed to inform a family member or pre-

appointed person of their choice and the

aforementioned appointed person is allowed

to cast the vote on behalf of the external

voter.

4.Electronic Voting: here the external voteruses electronic means like telephone or

computers to cast their registered vote.

5.Of these options available, a number ofcountries have adopted either one or even

two methods so as to make the process of

casting a vote easier. Therefore it is deemed

necessary that these options were previously

studied for the purpose of considering its

viability before landing on the one which is

currently prevalent in our country.

It is our humble submission that in light of the

fact that the need for the actual presence of the

voter in the constituency at the time of voting is

not the sole method which may allow an


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external voter to exercise his/her franchise, it is

incumbent on the legislature to research,

analyse and choose one or more methods so as

to make the process more accessible rather

than restrictive.

It is the humble submission of the Petitioner

that considering the nuances of the issue, it is

absolutely imperative that a detailed study be

conducted so as to analyse the most

appropriate external voting mechanism which

would allow for the most coverage of the law.

It is the humble submission the Petitioner

herein that another writ petition being W.P.No

.... of 2014 (Rajeev Chandrashekhar vs. Union

of India)has been filed and notice has been

issued wherein the question pertains to the

right of members of the armed forces being

allowed to vote at their place of deployment. It

is submitted that the present writ petition raises

a similar question.


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LIST OF DATES

The Petitioner herein is a Doctor

by profession who runs a chain

of hospitals in the UAE. The

Government of India has

awarded its highest civilian

honour to the NRI which is the

pravasi bharatiya award to the

Petitioner for his outstanding

services provided in the field of

medical services.

February

2006

The amendment to the

representation of peoples act bill

was introduced in the Rajya

Sabha in February, 2006 which

seeks to give voting rights to

Indian Citizens living abroad due

to employment as well as

educational purposes.

August 2006 The parliamentary standing

committee gives its report on

the bill referred to it.


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January,2010 The Honble Prime Minister

makes a statement that the

government was planning to

introduce a bill in the next

session of parliament to give

voting rights to NRIs.

4.5.2010 A writ petition being W.P.No.

193 of 2010 is filed by one

Ahammed Adiyottil seeking the

striking down of Section 19 and

20 of the representation of

peoples Act 1950 as being

discriminatory.

19.7.2010 This Honble Court allows the

Petitioner to withdraw the writ in

view of the fact that the

Representation of Peoples

Amendment Bill, 2006 is pending

before the parliament.

22.9.2010 Section 20A of the

representation of peoples act

comes into force on 21.9.2010

wherein NRIs residing abroad


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are given the right to vote.

24.2.2014 A special leave petition being

SLP No. CC 3148/2014 is filed by

one Rajesh Chandrashekar

wherein the rights of armed

forces to cast their vote from

their place of deployment is

sought to be affirmed. This

Honble Court was pleased to

issue notice in the matter.


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IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (Civil) No of 2014

IN THE MATTER OF

Dr. Shamsheer V.P. ,

S/o. P.K. Hashim,

Residing at P.B. No. 94666,

Abu Dhabi, U.A.E. ..Petitioner

Versus

1. Union of India

Respresented by Secretary

Ministry of Overseas Indian Affairs

Akbar Bhawan ,Chanakyapuri

New Delhi

2. Chief Election Commissioner

Election Commission

NirvachanSadan ,Ashok road

New Delhi . Respondents

PETITION UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDIA

To

The Honble Chief Justice of India


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And his other companion Judges

Of the Honble Supreme Court of India

The humble Petition of the

Petitioners above names.

Most respectfully showeth

1. That the Petitioner is filing the present WritPetition in public interest under Article 32 of

the Constitution of India for the enforcement

of his fundamental rights guaranteed under

Article 14 , 19 and 21 of the Constitution of

India and seeks a writ in the nature of

mandamus to read down Section 20A of the

Representation of Peoples (Amendment) Act,

2010 No.36 of 2010.

2. That the facts leading to the filing of thepresent petition are as follows:

2.1 The Petitioner herein is a Doctor by

profession who runs a chain of hospitals in

the UAE. The Government of India has

awarded its highest civilian honour to the NRI

which is the pravasi bharatiya award to the

Petitioner for his outstanding services

provided in the field of medical services.


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2.2 The amendment to the representation of

peoples act bill was introduced in the Rajya

Sabha in February ,2006 which seeks to give

voting rights to Indian Citizens living abroad

due to employment as well as educational

purposes. A true copy of the amendment bill

to the Representation of peoples Act is

attached herewith and marked as Annexure

P1(page

2

.3 The parliamentary standing committee in the

month of August 2006 gives its report on the

bill referred to it.

2.4 The Honble Prime Minister in January 2010

makes a statement that the government was

planning to introduce a bill in the next

session of parliament to give voting rights to

NRIs. A true copy of the statement reported

in the economic times in the January 2010 is

attached herewith and marked as Annexure

P2(Pages

2.5 A writ petition being W.P.No. 193 of 2010 is

filed by one Ahammed Adiyottil seeking the


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2.8 A special leave petition being SLP No. CC

3148/2014 is filed by one Rajesh

Chandrashekar wherein the rights of armed

forces to cast their vote from their place of

deployment is sought to be affirmed. This

Honble Court was pleased to issue notice in

the matter vide its order dated 24.2.2014. A

true copy of the order dated 24.2.2014 in

SLP No. CC 3148/2014 is attached herewith

and marked as Annexure P5(Pages

2

.9 The Petitioner herein sends a representation

to the Honble Prime Minister of India seeking

his kind intervention in the matter. A true

copy of the representation dated 27.2.2014

issued by the Petitioner to the Prime Minister

is marked a Annexure P6(Pages

2.10The International Institute for Democracy and

Electoral Assistance, an intergovernmental

organization issues a handbook for the

purpose of providing information with regard

to various forms of external voting and


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different methods adopted by countries . A

true copy of the hand book issued is attached

herewith and marked as Annexure

P7(Pages

3. GROUNDS

3.1 It is the humble submission of the Petitioner

that the law allowing NRIs to vote as it

stands now runs anathema to Article 14 ,19

and 21 of the Constitution.

3

.2 It is the submission of the Petitioner that the

law is not in consonance with the objects and

reasons behind promulgating it. It is the

humble submission of the Petitioner that the

purpose of providing for the law was in view

of the fact that the parliament recognised the

legitimate constitutional right of all NRIs to

join the democratic process in the country.

This has been reflected in the Statement of

Objects and reasons shown in the bill. It is

submitted when the intent is put in context of

the implementation of the law, the result has

been disappointing as it there is no practical

basis for enjoining upon the NRI voters to


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have to return to the constituency to cast

their vote.

3.3 It is submitted that the Section 20A of the

Act discriminates against persons who reside

abroad for the purpose of employment as

they would not be able to return to their

constituency for the purpose of casting their

vote.


that the law as it stands today treats NRIs of

different economic strata on different footing.

As a result of the present law, a deep divide

is created amongst the NRIs between the

haves and the have nots. It is submitted that

the law allowing NRIs to vote would be

applicable only to financially stable persons

living abroad and not those who do not have

the financial ability to return to their

homeland for the purpose of casting their

vote.


that there has not been any consideration of

the various alternative methods which are


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available and are even utilised by other

countries for the purpose of allowing external

voting.

3.6 It is submitted that in total 114 countries

have adopted external voting , 20 Asian

Countries are included. These 114 countries

have adopted numerous methods for

enabling the external voter to cast their

votes. It is submitted at present , the

following forms of external voting are in use

today:

a.Personal voting: Here the external voterscast their vote in pre-designated polling

booths in diplomatic missions set up

abroad.

b.Postal Voting: Here the external voter fillsout a ballot paper and posts the same to a

pre-designated polling station in their

home country via regular post.

c.Proxy Vote: Here the external voter isallowed to inform a family member or pre-

appointed person of their choice and the

aforementioned appointed person is


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allowed to cast the vote on behalf of the

external voter.

d.Electronic Voting: here the external voteruses electronic means like telephone or

computers to cast their registered vote

In light of these other viable options, it

follows that appropriate studies were

conducted for the purpose of choosing which

form of external voting would most suit our

needs.

3.7 It is the humble submission of the Petitionerthat a country like Senegal, in Africa is one

which has a significant expatriate

community. Further, this expatriate

community is responsible for large amounts

of remittances back home and play a major

role in financial stabilisation. It is submitted

that Senegal as a result has adopted external

voting measures by setting up polling

stations in different countries where their

communities live so as to facilitate voting .

3.8 It is submitted that the present method used

is the least viable option as it is practically


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impossible for all NRI voters who wish to

exercise their right to adult suffrage to travel

all the way back to India to cast their vote.

3.9 It is submitted that NRIs remain to be

citizens of the Country and in light of this fact

it is incumbent upon the Government to

provide to them the same rights and

freedoms enjoyed by citizens that remain

present in India.

3.10It is submitted that this Honble Court hasheld in a catena of decisions that the right to

participate in democratic process in

irrefutable and therefore the present law

treating citizens of the country on a different

footing based on financial considerations is

violative of Article 14. Further , the denial of

the right to exercise the right to vote is

violative of Article 19(1) as well as Article 21

of the Constitution of India.


that on a reading of Article 326 of the

Constitution, it provides for all citizens of the

country -unless expressly disqualified for any


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reason- the right to vote. In light of the fact

that NRIs have now been given the right to

do so , it is imperative that all NRIs enjoy the

said benefit rather than a class of wealthy

few .

PRAYER

Therefore, the Petitioner herein humbly prays

that this Honble Court be pleased to call for

the records of the proceedings and be

pleased to

(a) Issue an appropriate writ, direction or orderin the nature of the mandamus and read

down the Amendment to the Representation

of Peoples Act , 2010 (Section 20A) as being

violative of Article 14 of the Constitution of

India in as much as it doesnot allow the NRIs

to vote from the place of employment.,

(b) Issue an appropriate writ , direction or orderin the nature of mandamus directing the

Union of India to set up a committee to study

the various available options for the purpose

of external voting ;


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(c) Issue such other writ order or direction, asdeemed fit in the circumstances of the case

in the interest of justice.

FOR WHICH ACT OF KINDNESS THE HUMBLE

PETITIONER SHALL AS IN DUTY BOUND EVER

PRAY.

DRAWN BY` FILED BY

(Haris Beeran) (R.S.Jena)

Advocate Advocate for the Petitioner

New Delhi

Drawn On :: 3 .3.2014

Filed On :: 15.3.2014

Documents

Dr.shamsheer v UOI [WP]